- The Washington Times - Thursday, June 20, 2013

Invoking the right to remain silent can no longer be invoked by remaining silent. That’s the odd conclusion the Supreme Court arrived at Monday in a Texas murder case that will affect anyone pulled over for something as simple as speeding.

The Fifth Amendment says no man can be forced to become a witness against himself, enshrining a principle that goes back to the days of the Puritans, who often refused to speak to 17th-century English interrogators who were determined to learn their religious affiliation. Many were found guilty just for refusing to answer questions. Others fled to the New World to escape this tyranny.

Since the 1966 Miranda v. Arizona ruling, arresting officers in America have had to remind suspects in police custody of their right to remain silent and that anything they tell the police can be used against them. It’s a familiar refrain to anyone who watches television.

Monday’s decision scales back the Miranda decision. Not only can your words be used against you, but the Supreme Court says your silence can be, as well. Genovevo Salinas found this out after he was questioned by Houston police regarding the 1992 murder of two brothers. Salinas voluntarily answered several questions, but went silent when one of the cops asked whether a ballistics test would match his shotgun to shell casings found at the scene of the crime.


Salinas was subsequently arrested, and his refusal to answer questions was used as evidence of guilt. “An innocent person,” the prosecutor told the jury, “is going to say: ‘What are you talking about? I didn’t do that. I wasn’t there.’ He didn’t respond that way. He didn’t say, ‘No, it’s not going to match up.’”

Led by Justice Samuel A. Alito Jr., the court majority argued that Salinas failed to “expressly invoke the privilege against self-incrimination in response to the officer’s question,” and held the Fifth Amendment “does not establish an unqualified right to remain silent.”

The dissent, written by Justice Stephen G. Breyer and joined by three other liberal justices, argued that permitting a prosecutor to comment on a defendant’s constitutionally protected silence would “put that defendant in an impossible predicament.” A defendant must choose “between incrimination through speech and incrimination through silence.”

Think of that the next time the constable asks, “Do you realize how fast you were speeding just now?” There’s no right answer. A “yes” admits guilt; a “no” suggests carelessness. The court’s liberal justices have a strong tendency to go easy on criminals — just as the conservatives have a tendency to give the police and prosecutors what they want — and the minority justices raise an important point. It’s silly to require a specific incantation be spoken before the courts recognize a defendant’s constitutional right. Remaining silent may not be the only way a defendant can protect himself from self-incrimination, but it is the most effective. Silence is silence, which the Fifth Amendment says in the clear, plain English that law schools teach lawyers to disdain if and when they can.

It’s frustrating when a violent criminal gets off on a technicality, as when the cops forget to read the Miranda warning. But the Founding Fathers did not write in these safeguards to protect the rights of the perfect and the just. Abusing the rights of the bad guys diminishes rights of all of us.

The Washington Times